Explication of the Right of the United States to the navigation of the River Missisippi, and to the jurisdiction of the western part of the State of Georgia.

THE conferences which the commissioners plenipotenti­ary of the United States have hitherto had with his Excel­lency the plenipotentiary of his Catholic Majesty, on the subjects of limits and the navigation of the Missisippi, have not had the issue expected. It is hoped that a more perfect and full examination of the right of the respective parties, and a comparison of the documents on which they are foun­ded, may give a different result.

WE, the commissioners plenipotentiary of the United States, therefore proceed to reduce to a more permanent form the claims of the United States, which we have hereto­fore stated and supported in the conferences, and to shew the title from which they are derived.

The several states now composing the United States of A­merica, were from their first establishments dependent on no other society of men whatever. They continued at the head of their respective governments, the executive magistrate who presided over the one they had left, and thereby secur­ed in effect a constant amity with that nation during the time of that connexion. In this stage of their government the several boundaries were fixed, and particularly the sou­thern boundary of Georgia, the one now brought into ques­tion by Spain. This boundary was fixed by the proclama­tion of the King of Great-Britain, their chief magistrate, in the year 1763, at a time when no other power pretended any [Page 34] claim whatever to any pars of the country through which it run. All the territory on the left side of the Mississippi, except the town of New Orleans, and the Island in which it is situated, having been previously yielded by the treaty of Paris, to which H. C. M. was one of the high contracting parties.

The boundary of Georgia was thus established, to begin on the Mississippi in 310 of lat. north of the equator, and run­ning eastwardly to the Apalachicola, thence along the said river to the mouth of the Flint, thence in a direct line to the source of St. Mary's river, and down the same to the ocean. The western boundary originally the Pacific ocean, was by the treaty of Paris reduced to the middle of the Mississippi.

In the late war which took place between Great-Britain and the consederated states, and in the course of which we were joined by France as an ally, and by Spain and Holland as associates, having a common enemy this boundary was the line of demareation to the south, between the country which engaged in the war against Great-Britain and that which continued under British government; Georgia having en­tered into the consederation, and Florida having remained in its former state. At the conclusion of hostilities Great-Britain (the only power against whom the United States had been engaged in war) acknowledged their boundary, and that without extending it to the prejudice of Spain, as is pretended; but on the contrary confirming that of Georgia in particular, as it had existed from the year 1763: In the treaty afterwards made with Spain, Great-Britain ceded the two Floridas (which had been defined in the proclamation of 1763) and Minorca; and by an express article of the trea­ty, Spain agreed to restore without compensation, all the territories conquered by her, and not included in the treaty either under the head of cessions or restitutions, that is to say, all except Minorca and the Floridas. According to this stipulation Spain was expressly bound to have deliver­ed up the possessions she had taken within the limits of Geor­gia, to Great-Britain, if they were conquests only. Britain, who was to deliver them over to the United States, or ra­ther Spain, should have delivered them to the United States themselves as standing quo ad hoe, in the place of G. Britain. Spain was bound also by natural right to deliver them to the United States on a still stronger ground, as the real and only proprietors of those places which she had tak­en possession of, without having had any cause of war with the United States, to whom they belonged, and without having declared any; but on the contrary conducting her­self [Page 35] in other respects as a friend and associate in a war against a common enemy. It is an established principle that con­quest gives only an inchoate right, which does not become perfect till confirmed by the treaty of peace, and by a renun­ciation or abandonment of the former proprietor. Had G. Britain been that former proprietor, she was so far from con­firming to Spain the right to the territory of Georgia, inva­ded by Spain, that she expressly relinquished to the United States any right that might remain in her, and afterwards completed that relinquishment by further procuring and consolidating the agreement with Spain herself, to restore such territory, if comprehended within the conquests of Spain, without compensation. It is still more palpable that a war existing between two nations, as Spain and G. Britain, can give to neither the right to seize and appropriate the ter­tory of a third which is even neutral, much less which is an associate in the war, as the United States were with Spain. On the conclusion of the general peace, the United States lost no time in requiring from Spain an evacuation of their territory. This has hit her to been delayed by means which need not be explained here, but which have been equally contrary to the right, and to the consent of the United States. From what has been said it results—:

1. That the boundary of Georgia now forming the south­ern limits of the UNITED STATES, was lawfully estab­lished in the year 1763.

2. That it has been since confirmed by the only power who could at any time have had pretensions to contest it, founded on a state of war.

3. That GREAT-BRITAIN by the late treaty of peace obtained of Spain a renunciation to all pretensions within this boundary so as to have removed every pretext for ques­tioning the right of GREAT-BRITAIN, to have confirm­ed that boundary to the UNITED STATES.

4. That Spain can have no right to any claim by conquest within the limits of the UNITED STATES, having ne­ver been in a state of war with them.

The right of the UNITED STATES, to participate in the navigation of the Mississippi rests on two separate and distinct foundations, either of which would suffice to estab­lish it clearly. These are

I. The treaties of Paris of 1763 and of 1782/3, the latter between the United-States and Great-Britain.

II. The law of nature and nations.

I. The war of 1755, 1763 was carried on jointly by Great Britain, and the thirteen colonies now the United-States of [Page 36] America against France and Spain. By the treaty of peace which was negociated by our common chief Magistrate, and to which as has been observed, H. C. M. was one of the high contracting parties, a right was secured to the subjects of Great-Britain, (the common designation of all those un­der his government) to navigate this river in the terms fol­lowing. "The navigation of the river Mississippi, shall be equally free to the subjects of Great-Britain, and those of France, in all its breadth and extent from its source to the sea, and especially that part of it which is between the above­mentioned Island of New-Orleans, and the right bank of this river, as well as the entrance and passage out through its mouth. It is moreover stipulated that vessels belonging to the subjects of the one or the other nation, shall not be ar­rested, visited or subjected to the payment of any duty whatsoever."

Spain soon after received from France, a Cession of the Island of New-Orleans, and all country she held westward of the Mississippi, subject of course to our right of naviga­ting between that country and the Island previously grant­ed to us by France. Thus stood our right to navigate the Mississippi under the treaty of Paris. In the course of the late war in which the United-States, Spain and France were opposed to Great-Britain, Spain took possession of several posts held by the British in Florida. It is unneces­sary to examine whether the possession of half a dozen posts scattered through a country of seven or eight hundred miles extent, could be considered as the possession and conquest of that country. If it were, it gave still but an inchoate right as was explained above, which could not be perfected but by the relinquishment of the former proprietor at the close of the war. But certainly it could not be considered as a conquest of the river even against Great-Britain, since the possession of the shores, to wit of the Island of New-Orleans on one side, and Louisiana on the other, had under­gone no change.

Still less can Spain be considered as having conquered the river as against the United States with whom she was not at war. When this war commenced, we had a common right of navigation in the part of the river between Florida, the Island of New-Orleans, and the western bank; and nothing which passed between Spain and Great-Britain, either dur­ing the war, or at its conclusion, could lessen that right. Accordingly at the treaty of Novemver 1782, Great-Britain confirmed the rights of the United States, to the navigation of the river from its source to its mouth, and in January [Page 37] 1783 completed the right of Spain to the territory of Flori­da, by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great-Britain. It could only transfer that portion of right which Great-Britain had retained to herself in the treaty with the Unit­ed States held seven weeks before, to wit, a right of using it in common with the United States.

So that as by the treaty of 1768 the United States had ob­tained a common right of navigating the whole river from its source to its mouth, so by the treaty of 1781 that com­mon right was confirmed to them by the only power who could pretend claims against them founded on a state of war. Nor has that common right been transferred to Spain either by conquest or Cession.

II. Independant of the right of the United States to navigate the Mississippi as above established, they are enti­tled to it also by that code which is founded in natural jus­tice, sanctioned by the usuage of all civilized countries, and strengthened by the morality of sovereigns.—The law of nature and Nations.

There is no principle of natural justice more strongly mark­ed than that seas are free to all men, and rivers to all their inhabitants. There is no man, savage or civilized, unbiased by habit, who does not feel and attest this truth. Accord­ingly in all tracts of country united under the same political society, we find this natural right universally acknowledg­ed and protected, by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of a­nother society, if the right of the upper inhabitants to de­scend the stream, be in any case obstructed, it is an abridge­ment of the natural right effected by some act of society.—Such an abridgement will necessarily be considered by im­partial observers, with a reference to the comparitive num­bers of persons above, and those below the limits of the two countries, the nature and extent of the river, and other at­tending circumstances.

It is easy to see that there are cases in which such an a­bridgement could be only by an act of force in a stronger society against a weaker one, which would be condemned by the Judgment of mankind.

Such an act of force is in some cases supposed to be modi­fied by the upper inhabitants, having bound themselves for some valuable consideration to renounce their natural right of navigating the river.

[Page 38] It is not necessary to examine here how far this right be an alienable one, and what circumstances of necessity can justify such an alienation so as to be binding on themselves and their posterity.

The examples of history leave no doubt that this will unavoidably depend in some degree on the progressive rela­tions of times and countries.

Whenever it be pretended however that an [...] so contrary to natural justice, has been made, it may be at least expected that the act of renunciation should be produced. Such an act would of course have been a solemn one, nego­ciated by those duly authorised to act in the name of the society, and therefore easy to be produced if it existed. Un­til it be produced, it is fair to suppose that the rights of the upper inhabitants, anticedent thereto and founded on na­tural justice, exist in all their integrity. With respect to the United States they have been so far from assenating this right, that the only acts in which the subject has been men­tioned as respecting them, have as has been shewn above, expressly secured and confirmed to them by treaty, the rights of navigation to which they are entitled by natural law.

So far as this sentiment of right in favor of the upper in­habitants depends on a comparison of the numbers above and below the limits, or in other words, of those certainly to be benefitted, and those supposed to be liable to injury from the freedom of the navigation, there is no case in which it can be more strongly marked than in the present.

The United States hold 600,000 square miles of habita­ble territory on the Mississippi and its branches, and this riv­er and its branches afford many thousands of miles of navi­gable waters penetrating this territory in all its parts. The inhabitable grounds of Spain, below our boundary and bor­dering on the river, which alone can pretend any fear of being incommoded by our use of the river, are not the thou­sandth part of that extent. This vast portion of the terri­tory of the United States, has no other outlet for its pro­ductions, and these productions are of the bulkiest kind. And in truth their passage down the river may not only be innocent as to the Spanish subjects on the river, but from their nature might be made really advantageous to the com­mercial interests of Spain.

If we appeal to the law of nature and nations as express­ed by those writers on the subject whose authority is admit­ted by all, it is agred by them that were the river, where it passes between Florida and Louisiana the exclusive right [Page 39] of Spain, still innocent passage along it, is a natural right in those inhabiting its borders above; it would indeed be what those writers call an imperfect right, because the mod­ification of its exercise would depend in a considerable de­gree on the conveniency of the nation through which they are to pass. But it is still a right as real as any other right however well defined: and were it to be refused or to be shackled by regulations not necessary for the peace or safe­ty of its inhabitants, so as to render its use impracticable, it would then be an injury of which they would be entitled to demand redress.

The right of the upper inhabitants to use this navigation, is the counterpart to that of those possessing the shores be­low, and founded in the same natural relations with the soil and water; and the line at which their rights meet, is to be advanced or withdrawn, so as to equalize the inconveniences resulting to each party, from the exercise of the right by the other.

This estimate is to be fairly made with a mutual disposition to make equal sacrifices, and the numbers on each side are to have their due weight in the estimate—Spain holds so very small a tract of habitable land on either side below our boun­dary, that it may in fact be considered as a streight of the sea. For though it is 80 leagues from our boundary to the mouth of the river, yet it is only here and there, in spots and slips, that the land rises above the level of the water, in times of inundation. There are then, and ever must be, so few in­habitants on her part of the river, that the freeest use of its navigation may be allowed to us, without inconvenience to Spain.